The Supreme Court will weigh the legality of President Donald Trump’s attempt to fire a member of the Federal Trade Commission without cause on Monday — a blockbuster legal fight that could fundamentally reshape the balance of powers across the federal government, and formally topple a 90-year-old court precedent.
Justices agreed earlier this year to take up the case, which centers on Trump’s firing of Federal Trade Commission member Rebecca Slaughter, a Democrat, without cause and well before her term was slated to expire in 2029.
Slaughter sued immediately to challenge her removal, arguing that it violated protections the Supreme Court enshrined in Humphrey’s Executor, a 1935 ruling that restricted a president’s ability to remove the heads of independent agencies, such as the FTC, without cause.
Slaughter also argued her removal violates the Federal Trade Commission Act, or a 1914 law passed by Congress that shields FTC members from being removed by a president except in circumstances of ‘inefficiency, neglect of duty, or malfeasance in office.’
A federal judge sided with Slaughter’s lawyers in July, agreeing that her firing unlawfully exceeded Trump’s executive branch powers and ordered her reinstated. The Supreme Court in September stayed that decision temporarily, allowing Trump’s firing to remain in effect pending their review.
The Supreme Court’s willingness to review the case is a sign that justices might be ready to do away completely with Humphrey’s protections, which have already been weakened significantly over the last 20 years. Allowing Humphey’s to be watered down further, or overturned completely, could allow sitting presidents to wield more authority in ordering the at-will firing of members of other federal regulatory agencies, including the National Labor Relations Board and the Securities and Exchange Commission, among others, and replacing them with persons of their choosing.
The six conservative justices on the high court signaled as much when they agreed to review the case earlier this year. (Justices split along ideological lines in agreeing to take up the case, with Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson dissenting.)
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They asked both parties to come prepared to address two key questions in oral arguments: First, whether the removal protections for FTC members ‘violates the separation of powers and, if so, whether Humphrey’s Executor, should be overruled,’ and whether a federal court may prevent a person’s removal from public office, ‘either through relief at equity or at law.’
U.S. Solicitor General D. John Sauer has asked the high court to overrule Humphrey’s. He argued in a filing that the FTC authorities of today vastly exceed the authorities granted to the commission in 1935. ‘The notion that some agencies that exercise executive power can be sequestered from presidential control seriously offends the Constitution’s structure and the liberties that the separation of powers protects,’ he said.
A decision is expected to be handed down by the end of June.
The case, Trump v. Slaughter, is one of four cases the Supreme Court’s conservative majority has agreed to review this term that centers on key separation of powers issues, and questions involving the so-called unitary executive theory.
Critics have cited concerns that the court’s decision to take up the cases could eliminate lasting bulwarks in place to protect against the whims of a sitting president, regardless of political party.
It also comes as justices for the Supreme Court’s 6-3 conservative majority have grappled with a flurry of similar lawsuits filed this year by other Trump-fired Democratic board members, including Gwynne Wilcox of the National Labor Relations Board (NLRB) and Cathy Harris of the Merit Systems Protection Board (MSPB).
The arguments in Trump v. Slaughter will be closely watched and are expected to inform how the court will consider a similar case in January, centered on Trump’s attempted ouster of Federal Reserve Governor Lisa Cook.
Since taking office, Trump has signed hundreds of executive orders and ordered sweeping personnel actions that have restructured federal agencies and led to mass layoffs across federal agencies, including leaders that were believed to be insulated from the whims of a sitting president.